Bierman v. Weier

• Decision Date: 22 February 2013
• Docket Number: No. 10–1503.,10–1503.
• Citation: 826 N.W.2d 436
• Parties: Gail BIERMAN and Beth Weier, Appellees, v. Scott WEIER and Author Solutions, Inc., Appellants.
• Court: Iowa Supreme Court

826 N.W.2d 436

Gail BIERMAN and Beth Weier, Appellees,

v.Scott WEIER and Author Solutions, Inc., Appellants.

No. 10–1503.

Supreme Court of Iowa.

Jan. 18, 2013.

Rehearing Denied Feb. 22, 2013.

Cory F. Gourley of Gourley, Rehkemper & Lindholm, PLC, Des Moines, for appellant Scott Weier.

Michael A. Giudicessi of Faegre Baker Daniels LLP, Des Moines, and Mary Andreleita Walker of Faegre Baker Daniels LLP, Minneapolis, Minnesota, for appellant Author Solutions.

Gary D. Dickey, Jr. of Dickey & Campbell Law Firm, Des Moines, for appellees.

Charles D. Tobin of Holland & Knight LLP, Washington, D.C., and Sharon K. Malheiro and Jeffrey D. Ewoldt of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for amicus curiae Michael G. Gartner; Big Green Umbrella Media, Inc.; Lee Enterprises, Incorporated; Hearst Television, Inc.; SourceMedia Group; The Associated Press; The Iowa Newspaper Association; The Iowa Broadcasters Association; and The Iowa Freedom of Information Council.

MANSFIELD, Justice.

This defamation case concerns Mind, Body and Soul, a book written by Scott Weier. In the author's words, the book is “based on my life.” It discusses Scott's personal transformation, largely through his relationship with God, following his divorce “on bad terms” from his first wife. Scott's ex-wife and her father concluded the book falsely accused them of lying, abuse, and suffering from mental illness. They sued Scott and Author Solutions, Inc. (ASI), the company that produced the book, for libel, invasion of privacy, and intentional infliction of emotional distress. The district court, finding issues of fact, denied both defendants' motions for summary judgment. The author and the publisher appealed.

On our review, we uphold the denial of Scott's motion for summary judgment for substantially the reasons set forth in the district court's thorough opinion. However, we hold that ASI, as a bona fide book publisher, should be considered a “media defendant.” Therefore, we find that ASI was entitled to summary judgment because plaintiffs failed to provide sufficient proof to establish a prima facie case under the established standards applicable to such defendants. We also decline Scott and ASI's invitation to revise our common law of defamation at this time.

I. Background Facts and Proceedings.

After a contentious divorce which apparently resulted in a severing of Scott's ties with his daughters as well as his ex-wife, Scott wrote a 253–page memoir entitled Mind, Body and Soul.¹ In it he described his own shortcomings and the development of his personal relationship with God and offered advice for others on their own spiritual journeys. He also criticized his ex-wife, Beth Weier, in various respects—accusing her of lying to their daughters, being a bad parent, having a lack of religious conviction, and generally being mean and spiteful. In a key passage, he alleged that Beth's father, Gail Bierman, molested her as a child and that she suffered from either bipolar disorder or borderline personality disorder as a result. In one sentence summarizing a theme of the book, Scott wrote, “Satan (through my ex) set out to destroy my life, and has upended it completely, but through doing so, it has completely changed my life for the good!”

In late 2008, Scott enlisted the services of ASI to publish his book. For a total fee of $3183.81, ASI formatted and typeset the manuscript, designed the cover, and provided 250 copies of the book for Scott to self-distribute to local bookstores, friends, and family.

ASI offered proofreading and editing services, but Scott declined to purchase them. ASI did run a simple software program on the text that it described as a “manuscript scrub.” This program is a macro in Microsoft Word designed to identify passages that contain certain “buzz” words that might have the potential for being problematic. As an ASI employee explained:

What happens is all these words show up, and they're from all sorts of topics. Could be trademark issues or copyright issues. It's a variety of things. It can also be for offensive language. There's other things I look for as well just to make sure that there isn't some sort of hate literature or something like that.

So what will happen is the file will be created, the scrub will be created and all these words will be highlighted.... So it's just a broad range of things you try to go through and kind of size it up as quickly as possible.

After performing the manuscript scrub on Scott's book, ASI's employee received a highlighted printout that he “speed read.” In one identified passage, Scott had written, “I was molested by an uncle sexually as a young child.” The employee did not do anything about this passage after verifying with Scott that he had more than one uncle. The same employee also initially noted the following passage:

The two women we spoke of earlier, they were both molested by their fathers, or at least that is what they told me. And both of them were bipolar or borderline personality disorder, which is a fairly normal result of this type of sin against a child. Why does one person end up with mental issues and the other does not?

ASI's employee did not take action on this passage because he “didn't think there was enough information about the women.” Thus, ASI did not require any changes to the book prior to publication.

ASI did not promote the book but did provide guidance and tips to Scott on how to market his book himself. Scott distributed twenty to thirty of his 250 copies of the book to friends, family, and businesses in the Clear Lake area. The rest of the books remain stored in his parents' basement. ASI also offered the book on its own website, where three copies were sold, and through Amazon.com, where one copy was sold.

Following the book's release, Beth learned from a friend that Scott had written it and had made reference to her in it. She obtained a copy in February 2009, read it, and discovered various references to her and her daughters, including passages that appeared to indicate Beth had been abused by her father and suffered from bipolar or borderline personality disorder. She believed those statements, as well as others in the book, were false and defamatory. She and her father retained counsel and sent a cease and desist letter to Scott and ASI. Neither Scott nor ASI took action in response to the letter.

On February 24, 2009, Beth and Gail filed a petition in the Polk County District Court alleging libel per se, false light invasion of privacy, and intentional infliction of emotional distress. The petition specifically identified thirty-two excerpts from the book as being defamatory.² The plaintiffs also sought and were granted a temporary injunction to prevent further distribution of the book during the pendency of the litigation. ³

Scott and ASI filed separate answers to Beth and Gail's petition.⁴ Later, after discovery,all parties filed motions for summary judgment. Beth and Gail sought partial summary judgment on their libel claims, requesting an adjudication that certain passages in the book were libelous per se.

ASI filed a motion for summary judgment urging dismissal of all claims against it. ASI contended that most of Beth and Gail's libel claims should fail as a matter of law because the statements identified by the plaintiffs either were admitted to be true, were not about the plaintiffs, were not provably false, or were not defamatory. Additionally, ASI argued that Beth and Gail could not establish the elements of libel and were not entitled to presumptions under a libel per se theory because ASI was a media defendant. ASI's motion further argued that the claims for false light and intentional infliction of emotional distress should be summarily dismissed because they were simply libel claims under a different label. Alternatively, ASI maintained that the plaintiffs could not establish the publicity or fault requirements of their false light claims, and the plaintiffs could not establish the necessary elements of intentional infliction of emotional distress. ASI also sought summary judgment on the plaintiffs' request for punitive damages against it.

Scott's motion for summary judgment advanced most of the same arguments as ASI's motion, although he did not contend that he was a media defendant.

On September 15, 2010, the district court issued a twenty-three-page ruling on the parties' motions. The court concluded the statements in Scott's book regarding Gail's alleged abuse of Beth and Beth's resulting mental illness constituted libel per se and granted Beth and Gail's motion for partial summary judgment on that ground. The court then turned to whether ASI was a media defendant. It found it was not:

ASI is not the New York Times, or any other media entity. Rather it is a business which contracts to publish documents for private authors. And while its authors may, in some instances, have first amendment rights, the rights retained by ASI have nothing to do with the First Amendment.... Based on the Court[']s earlier determination that certain statements in the Book are libelous per se, ASI should be treated here as any other private defendant would be in a libel per se action. Accordingly, the elements of falsity, malice, and damage can be presumed as to ASI and the only element the Plaintiffs would have to prove is publication.

The district court further concluded that even if the plaintiffs were required to prove the four elements of a libel claim, they had demonstrated a fact issue as to each element sufficient to survive summary judgment.

The district court also denied ASI's motion for summary judgment on the false light invasion of privacy claim, finding fact issues existed as to whether ASI gave publicity to the book and whether ASI acted recklessly or with knowledge the book was false. The court, however, granted summary judgment to ASI on the intentional infliction of emotional distress claim, concluding the...